Calcutta High Court (Appellete Side)

The Reliance General Insurance ... vs Mina Devi Shaw & Ors on 23 August, 2023

23.08.2023
 Ct. 654
D/L 2 & 3
    ab

                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURIDICTION
                           APPELLATE SIDE

                               FMA 364 of 2023

                   The Reliance General Insurance Co. Ltd.
                                    -Vs-
                           Mina Devi Shaw & Ors.

                                         With

                                COT 40 of 2023

                           Mina Devi Shaw & Ors.
                                    -Vs-
                   The Reliance General Insurance Co. Ltd.


             Mr. Sanjay Paul,
             Ms. Jaita Ghosh
                           ... for the appellant-Insurance Company

             Mr. Ashique Mondal,
             Mr. Anup Kumar Bag
                        ... for the respondent Nos. 1 to 4 -claimants

This appeal is preferred against the judgment and

award dated 7th December, 2022 passed by the learned

Additional District Judge-cum-Judge, Motor Accident

Claims Tribunal, Fast Track, 5th Court, Alipore, 24

Parganas (South) in MAC Case No. 41 of 2015 granting

compensation of Rs. 35,59,798/- together with interest

in favour of the claimants under Section 166 of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 18th August,

2015 at about 16:30 hours while the victim was

proceeding on a bicycle through C.G.R. Road and when

he reached at the crossing of Nimak Mahel Road and

C.G.R. Road, the offending vehicle bearing registration

No. NL-02L/4761 (Trailor) dashed the bicycle of the

victim in a rash and negligent manner, as a result of

which the victim fell down on the road and sustained

severe injuries on his person. Immediately, the victim

was shifted to Bangur Institute of Neuro Science where

he was declared dead by the attending doctors. On

account of sudden demise of the victim, the claimants

being the widow and sons of the deceased filed

application for compensation of Rs. 32,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988.

The claimants in order to establish their case

examined four witnesses and produced documents,

which have been marked as Exhibits 1 to 21

respectively.

The appellant-insurance did not adduce any

evidence.

By order dated 13th July, 2023, service of notice

of appeal upon the respondent no. 5, owner of the

offending vehicle has been dispensed with since he did

not contest the claim application.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of

Rs.35,59,798/- together with interest in favour of the

claimants under Section 166 of the Motor Vehicles Act,

1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned Tribunal,

the insurance company has preferred the present

appeal.

Challenging the impugned judgment and award of

the learned Tribunal, the claimants have also preferred

a cross objection being COT 40 of 2023.

Both the appeal and the cross objection are taken

up together for consideration and disposal.

Mr. Sanjay Paul, learned advocate for the

appellant-insurance company submits that the learned

Tribunal erred in determining the monthly income of

the victim relying on the last salary slip for the month of

July, 2015 whereas it ought to have determined the

monthly income on the basis of average of the last seven

months salary from January, 2015 to July, 2015 to

calculate the monthly income of the victim. He also

indicates that the learned Tribunal did not deduct the

professional tax from the gross pay. In the light of the

aforesaid submissions, he prays for modification of the

impugned judgment and award.

In reply to the contentions raised on behalf of the

appellant-insurance company, Mr. Ashique Mondal,

learned advocate for the respondent nos. 1 to 4

(claimants) submits that the salary for the month of

July, 2015 has been rightly taken into consideration by

the learned Tribunal since the victim drew such salary

for the month of July, 2015 just prior to the accident.

He further indicates that the basic pay of the victim has

increased from Rs. 12,380/- in the month of January,

2015 to Rs. 12,760/- in the month of July, 2015 and,

therefore, the increased pay should be taken into

consideration. He, however, concedes that the

profession tax of Rs. 150/- should be deducted from the

gross pay to calculate the actual monthly income of the

victim. He also submits that the deceased at the time of

accident had four dependants namely wife and three

sons, who are the claimants in the claim application.

Since the major sons were largely dependent on the

income of the deceased and, therefore, the major sons

should also be considered as dependants of the victim

along with the widow. Thus, since the number of

dependants of the deceased is four, the deduction

towards personal and living expenses of the deceased

should be 1/4th instead of 1/3rd adopted by the learned

Tribunal. To buttress his contentions, he relies on the

decision of the Hon'ble Supreme Court passed in

National Insurance Company Limited versus

Birender And Others reported in (2020) 11 SCC 356

and another decision of Delhi High Court passed in

Roshni Devi & ors. versus Takdeer Singh & Ors.

reported in 2015 SCC OnLine Del 7334 and the

decision of Bombay High Court passed in Kalpana and

Others versus Salim Fattubhai Shikh and Another

reported in 2023 SCC OnLine Bom 1464.

Mr. Paul, learned advocate for the appellant-

insurance company in reply submits that the issue of

deduction towards personal and living expenses of the

deceased has been precisely dealt with by the learned

Tribunal holding that two sons, who are major and

pursuing their respective jobs cannot be strictly said to

be dependants upon their father and thus, deduction of

1/3rd of the income of the victim towards his personal

and living expenses made by the learned Tribunal, does

not call for interference.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the learned Tribunal

erred in determining the monthly income of the victim

at Rs. 34,415/- per month and secondly, whether the

learned Tribunal erred in deducting 1/3rd of the income

of the victim towards his personal and living expenses

instead of 1/4th.

With regard to the first issue relating to

determination of income of the victim, it is found that

the learned Tribunal has determined the income of the

victim at Rs.34,415/- per month on the basis of last

drawn gross salary for the month of July, 2015

(Exhibit-19 collectively). Mr. Paul, learned advocate

for the appellant-insurance company has strenuously

argued that the average of last seven months salary

from Janaury, 2015 to July, 2015 should be considered

for determining the monthly income of the victim. Upon

perusal of the salary slips, it appears that from June,

2015, there is increase in the basic pay of the victim.

Such being the position, the last drawn gross pay for

the month of July, 2015 less professional tax of

Rs.150/- would be appropriate to determine the actual

monthly income of the victim at the relevant time of

accident, as has been rightly argued on behalf of the

respondents-claimants. Thus, the actual monthly

income of the victim comes to Rs. 34,265/- [Rs.

34,415/- (gross pay) less Rs. 150/- (professional tax)].

With regard to the second issue relating to

deduction toward personal and living expenses, it is

found that the learned Tribunal has deducted 1/3rd of

the annual income of the victim towards his personal

and living expenses. Though Mr. Mondal, learned

advocate for the respondents-claimants relying on

Birender (supra), Roshni Devi (supra) and Kalpana

(supra) has argued that the major sons should be

considered as dependants and the deduction towards

personal and living expenses of the victim should be

1/4th, however, from the evidence of P.W.1, Vishal

Shaw, youngest son of the deceased, it is manifest that

two sons of the victim namely Dipak Shaw, aged about

32 years is working in a godown and Gopal Shaw, aged

about 31 years is a driver by profession. There is no

positive evidence that the aforesaid two sons of the

victim were precisely dependent on the income of the

victim. That apart, P.W.1 also did not state in clear

terms that his elder brothers were dependent on the

income of his deceased father. P.W.1, other son of the

deceased, though major and has studied up to B. Com.

1st year, but there is no evidence of his avocation or

employment. In view of the aforesaid materials on

record, I am of the view that the learned Tribunal has

rightly deducted 1/3rd of the annual income of the

victim towards his personal and living expenses.

In the report of Birender (supra), the evidence on

record would suggest that the claimants were working

as agricultural labourers on contract basis and were

earning a meagre income and the Hon'ble Court

observed that they were largely dependent on the

earning of the deceased whereas in the case at hand,

there are no evidence that other two sons were largely

dependent on the income of their deceased father. The

facts of the cited decision is distinguishable.

The report of Kalpana (supra) followed the

proposition made in the Birendra (supra) wherein it is

found that the family was dependent on agriculture

income from joint cultivation and the Court observed

that the young claimants were largely dependent on the

father who was a Karta/Manager of the family. The

facts of the cited decision is distinct and different from

case at hand.

In the report of Roshni Devi (supra), the Court

considered major sons as dependants on the parents till

they settle in their life. There is no evidence that the

other two sons namely Dipak Shaw and Gopal Shaw

were dependents on the income of their deceased father.

The facts are thus distinguishable.

The other factors have not been challenged in this

appeal.

Bearing in mind the above factors, calculation is

made hereunder:

Calculation of Compensation

Monthly salary Rs.34,415/-

       Less: Professional tax                   Rs.150/-
       Actual monthly salary                    Rs.34,265/-
       Yearly income                            Rs.4,11,180/-
       (Rs.34,265/- x 12)
       Add: 15% of the yearly income            Rs.61,677/-
            towards future prospect
                                                Rs.4,72,857/-
       Less: 1/3rd towards personal             Rs.1,57,619/-
             and living expenses
                                                Rs.3,15,238/-
       Multiplier 11                            Rs.34,67,618/-
       (Rs.3,15,238/- x 11)
       Add: General damages                     Rs.77,000/-
              Loss of estate: Rs.16,500/-
              Loss of consortium: Rs.44,000/-
              Funeral expenses: Rs.16,500/-
       Total compensation                       Rs.35,44,618/-


      Thus,      the   claimants      are   entitled   to     total